Penn State's silence on Clery report shows need for public records reform



Last week, the Department of Education issued its preliminary report, part of its investigation into whether Pennsylvania State University violated the Clery Act in its handling of allegations of sexual abuse by former assistant football coach Jerry Sandusky. It will likely be years, though, before the public learns what the department uncovered in its far-reaching review of campus safety practices at the school since 1998 — one of the largest and most high-profile investigations ever.

The reason for the secrecy is two-fold. A federal law requires the Department of Education to maintain the confidentiality of any program reviews until the final program report is issued. Each investigation follows a similar pattern: The department reviews records from the school in question and issues a preliminary report with its findings. The school is then given a chance to respond before a final report is issued. From start to finish, the process can take years.

The federal law requiring secrecy only applies to the Department of Education, though — the schools themselves are under no such obligation. At public schools, journalists and members of the public can — and regularly do — get access to the preliminary reports with a simple public records request.

Unfortunately, the Penn State report won't be so easily obtained, thanks to public records laws in the state that exempt "state-related institutions" from public records laws. Although they receive taxpayer money, Penn State, the University of Pittsburgh, Temple University and Lincoln University are only required to release an annual report. The release of anything else — emails, letters, phone records and even police records — is solely at the school's discretion, just as it is with private colleges and universities. (Penn State has voluntarily released many documents related to the Sandusky investigation.)

Penn State has decided not to err on the side of transparency: In its statement announcing their receipt of the report, Penn State said the school was "committed to fully engaging in the review process and will maintain the confidentiality of the report."

Decisions like this are yet another example of the need to bring Pennsylvania's state-related institutions under the umbrella of public records laws. Ever since the Sandusky allegations first came to light, there has been a push to change the state's law, with many open government advocates taking the position that stronger public records laws could have brought the allegations to light sooner.

Despite these efforts, multiple bills proposed in the past two years have stalled, in large part due to lobbying from the schools themselves. Senate and House bills introduced this session have moved very little, though there's still the potential for the legislature to take up the issues again this fall.

Hopefully, they will. Given the far-reaching implications and potential fines the Department of Education investigation could bring, Penn State students and Pennsylvania taxpayers deserve a heads-up.

Tagged: campus crime, Clery Act, FOI, legislation, newsgathering, Pennsylvania, public records, U.S. Department of Education